WSR 02-06-040

PROPOSED RULES

DEPARTMENT OF ECOLOGY


[ Order 00-26 -- Filed February 27, 2002, 11:28 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 00-21-047.

Title of Rule: Floodplain management regulations, chapter 173-158 WAC.

Purpose: Current statutes do not allow the reconstruction of farmhouses or other residential structures if they are substantially damaged and are located within the regulatory floodway. As directed by the legislature through ESHB 1963 and ESHB 2934, ecology is amending the floodplain management regulations, chapter 173-158 WAC, to provide a process through which a waiver to the reconstruction prohibition can be provided as a recommendation to the local permitting authority.

Other Identifying Information: Under certain circumstances, described in the proposed rule change, reconstruction or replacement of substantially damaged farmhouses and other residential structures may be allowed, even when they are located in the regulatory floodway.

Statutory Authority for Adoption: Chapter 86.16 RCW.

Statute Being Implemented: Chapter 86.16 RCW.

Summary: This rule change allows for the replacement of substantially damaged structures in the regulatory floodway under specific circumstances.

Reasons Supporting Proposal: This action is required pursuant to ESHB 1963 and ESHB 2934.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Tim D'Acci, Headquarters, 407-6796.

Name of Proponent: Department of Ecology.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: The department agrees with these negotiated rule changes.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: Under the current regulations contained in the chapter 173-158 WAC, no reconstruction or replacement of a substantially damaged residential structure located in the floodway is allowed. This rule amendment would allow, under specific circumstances, the replacement residential structure located in the floodway is allowed. This rule amendment would allow, under specific circumstances, the replacement of either a farmhouse residence or an "other residential structure" in the floodway, provided the state and federal rules addressing such construction are met. This replacement or reconstruction would only be allowed when no other alternative is available, and the floodway characteristics are such that they present a minimal threat to safety.

Proposal Changes the Following Existing Rules: These changes are required by ESHB 1963 and ESHB 2934. See Explanation of Rule above.

No small business economic impact statement has been prepared under chapter 19.85 RCW. RCW 19.85.025 provides that a small business economic impact statement is not required for adoption of a rule described in RCW 34.05.310(4). RCW 34.05.310 (4)(b) applies to this case in that the proposed rule relates only to the Department of Ecology and local governments. RCW 34.05.310 (4)(e) also applies in that the proposed amendments to chapter 173-158 WAC are explicitly dictated by statute. See RCW 86.16.041 (3) through (5) for provisions relating to repair or replacement of farmhouses and other residential structures in floodways and for the development of assessment procedures and criteria required to implement subsections (3) and (4).

RCW 34.05.328 does not apply to this rule adoption. This proposal is exempted from the requirements of RCW 34.05.328 by subsections (5)(b)(ii) and (v). These subsections provide for exemptions for rules relating to internal government operations and for rules explicitly dictated by statute. See paragraph above.

Hearing Location: Walter Hall, 1226 West Casino Road, Everett, WA, on April 17, 2002, at 6:30 p.m.; and at the Yakima Valley Doubletree Hotel, 1507 North 1st Street, Yakima, WA, on April 18, 2002, at 6:30 p.m.

Assistance for Persons with Disabilities: Contact Mary Lynum by April 12, 2002, (360) 407-6908.

Submit Written Comments to: Scott McKinney, SEA Program, P.O. Box 47600, Olympia, WA 98504-7600, or e-mail smck461@ecy.wa.gov, fax (360) 407-6902, phone (360) 407-7297. Comments must be postmarked before April 25, 2002.

Date of Intended Adoption: June 28, 2002.

February 26, 2002

Linda Hoffman

Deputy Director

OTS-5483.1


AMENDATORY SECTION(Amending WSR 90-21-089, filed 10/19/90, effective 11/19/90)

WAC 173-158-030   Definitions.   For the purposes of this chapter the following definitions shall apply:

(((1))) "Base flood" means the flood having a one percent chance of being equalled or exceeded in any given year. Also referred to as the "one hundred year flood."

(((2))) "Best available information" means in the absence of official flood insurance rate map data, communities can use data from other federal, state, or other sources provided this data has either been generated using technically defensible methods or is based on reasonable historical analysis and experience.

(((3))) "Designated floodway" means the regulatory floodway which has been delineated on the flood insurance rate map (FIRM) or the flood boundary/floodway map (FBFM) of a community's flood insurance study and is included in the community's flood damage prevention ordinance.

(((4))) "Development" means any man-made change to improved or unimproved real estate, including, but not limited to, buildings or other structures, mining, dredging, filling, grading, paving, extraction or drilling operations or storage of equipment or materials.

"Dwelling" means one or more rooms designed for occupancy by a person or family for living and sleeping purposes, containing kitchen facilities and rooms with internal accessibility, for use solely by the dwelling's occupants.

"Encroachment" means any alteration or development within the regulatory floodway that would result in any increase in flood levels during the occurrence of the base flood discharge.

"Farmhouse" means a single family dwelling located on a farm site where resulting agricultural products are not produced for the primary consumption or use by the occupants and the farm owner.

"Flood or flooding" means a general and temporary condition of partial or complete inundation of normally dry land areas from:

(((a))) The overflow of inland or tidal waters; and/or

(((b))) The unusual and rapid accumulation of runoff of surface waters from any source.

(((5))) "Flood insurance rate map (FIRM)" means the official map on which the federal insurance administration has delineated both the areas of special flood hazard and the risk premium zones applicable to the community.

(((6))) "Floodway" means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot.

(((7))) "New construction" means structures for which the "start of construction" commenced on or after the effective date of the local ordinance.

(((8))) "Person" means an individual, partnership, corporation, association, organization, cooperative, public or municipal corporation, or any agency of the state or local governmental unit however designated.

(((9))) "Replacement residential structure" means a residential structure built as a substitute for a previously existing residential structure of equivalent use and size.

"Residential structure" means a place in which one lives: Dwelling.

"Special flood hazard area" means an area subject to a base or one hundred year flood; areas of special flood hazard are shown on a flood hazard boundary map or flood insurance rate map as Zone A, AO, A1-30, AE, A99, AH, VO, V1-30, VE, or V.

(((10))) "Structure" means a walled and roofed building, including a gas or liquid storage tank that is principally above ground. Manufactured homes are considered structures.

(((11))) "Start of construction" includes substantial improvement, and means the date the building permit was issued, provided the actual start of construction, repair, reconstruction, placement, or other improvement was within one hundred eighty days of the permit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading, or filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for a basement, footings, piers, or foundation or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure.

(((12) "Substantial improvement" means any repair, reconstruction, or improvement of a structure, the cost of which equals or exceeds fifty percent of the market value of the structure either:

(a) Before the improvement or repair is started; or

(b) If the structure has been damaged and is being restored, before the damage occurred. For the purposes of this definition "substantial improvement" is considered to occur when the first alteration of any wall, ceiling, floor, or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure.

The term does not, however, include either:

(i) Any project for improvement of a structure to comply with existing state or local health, sanitary, or safety code specifications which are solely necessary to assure safe living conditions; or

(ii) Any alteration of a structure listed on the National Register of Historic Places or a state inventory of historic places.

(13))) "Substantial damage" means damage of any origin sustained by a structure where the cost of restoring the structure to its before damage condition would equal or exceed fifty percent of the market value of the structure before the damage occurred.

"Substantial improvement" means any repair, reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds fifty percent of the market value of the structure before the "start of construction" of the improvement. This term includes structures that have incurred "substantial damage," regardless of the actual repair work performed. The term does not, however, include either:

Any project for improvement of a structure to comply with existing state or local health, sanitary, or safety code specifications which have been identified by the local code enforcement or building official and are the minimum necessary to assure safe living conditions; or

Any alteration of a historic structure, provided that the alteration will not preclude the structure's continued designation as a historic structure.

"Variance" means a grant of relief from the requirements of this chapter which permits construction in a manner that would otherwise be prohibited by this chapter.

(((14))) "Wetlands" means lands transitional between terrestrial and aquatic systems where the water table is usually at or near the surface or the land is covered by shallow water. Wetlands have one or more of the following three attributes: (((a))) At least periodically, the land supports predominantly hydrophytes; (((b))) the substrate is predominantly undrained hydric soil; and (((c))) the substrate is nonsoils and is saturated with water or covered by shallow water at some time during the growing season of each year.

[Statutory Authority: RCW 86.16.061. 90-21-089, 173-158-030, filed 10/19/90, effective 11/19/90; 89-07-022 and 90-06-059 (Order 88-57 and 88-57A), 173-158-030, filed 3/7/89 and 3/6/90, effective 4/6/90. Statutory Authority: Chapter 86.16 RCW. 88-10-058 (Order 88-6), 173-158-030, filed 5/4/88.]


AMENDATORY SECTION(Amending WSR 90-21-089, filed 10/19/90, effective 11/19/90)

WAC 173-158-070   Additional floodway requirements.   The following additional state requirements are established in accordance with RCW 86.16.041.

(1) Special flood hazard areas with designated floodways. In addition to those NFIP requirements for designated floodways, communities with designated floodways shall restrict land uses within such areas to include the prohibition of construction or reconstruction of residential structures except for: (a) Repairs, reconstruction, or improvements to a structure which do not increase the ground floor area; and (b) repairs, reconstruction, or improvements to a structure the cost of which does not exceed fifty percent of the market value of the structure either (i) before the repair, reconstruction, or improvement is started, or (ii) if the structure has been damaged, and is being restored, before the damage occurred. Work done on structures to comply with existing health, sanitary, or safety codes ((or to structures identified as historic places)) which have been identified by the local code enforcement or building official and are the minimum necessary to assure safe living conditions shall not be included in the fifty percent determination in (b) of this subsection. A residential dwelling located partially within a designated floodway will be considered as totally within a designated floodway and must comply with this chapter. However, the floodway prohibition in this subsection does not apply to existing farmhouses in designated floodways that meet the provisions of WAC 173-158-075, or to residential dwellings other than farmhouses that meet the depth and velocity and erosion analysis provisions of WAC 173-158-076, or to structures identified as historical places.

(2) Special flood hazard areas without designated floodways. When a regulatory floodway for a stream has not been designated, the community may require that applicants for new construction and substantial improvements reasonably utilize the best available information from a federal, state, or other source to consider the cumulative effect of existing, proposed, and anticipated future development and determine that the increase in the water surface elevation of the base flood will not be more than one foot at any point in the community. Building and development near streams without a designated floodway shall comply with the requirements of 44 CFR 60.3 (b)(3) and (4), and (c)(10) of the NFIP regulations.

[Statutory Authority: RCW 86.16.061. 90-21-089, 173-158-070, filed 10/19/90, effective 11/19/90. Statutory Authority: Chapter 86.16 RCW. 88-10-058 (Order 88-6), 173-158-070, filed 5/4/88.]


NEW SECTION
WAC 173-158-075   Existing farmhouse standards.   Repairs, reconstruction, replacement, or improvements to existing farmhouse structures located in designated floodways and which are located on lands designated as agricultural lands of long-term commercial significance under RCW 36.70A.170 shall be permitted subject to the following:

(1) The new farmhouse is a replacement for an existing farmhouse on the same farm site;

(2) There is no potential safe building site for a replacement farmhouse on the same farm site outside the designated floodway;

(3) Repairs, reconstruction, or improvements to a farmhouse shall not increase the total square footage of encroachment of the existing farmhouse;

(4) A replacement farmhouse shall not exceed the total square footage of encroachment of the structure it is replacing;

(5) A farmhouse being replaced shall be removed, in its entirety, including foundation, from the floodway within ninety days after occupancy of a new farmhouse;

(6) For substantial improvements, and replacement farmhouses, the elevation of the lowest floor of the improvement and farmhouse respectively, including basement, is a minimum one foot higher than the base flood elevation;

(7) New and replacement water supply systems are designed to eliminate or minimize infiltration of flood waters into the system;

(8) New and replacement sanitary sewerage systems are designed and located to eliminate or minimize infiltration of flood water into the system and discharge from the system into the flood waters; and

(9) All other utilities and connections to public utilities are designed, constructed, and located to eliminate or minimize flood damage.

[]


NEW SECTION
WAC 173-158-076   Substantially damaged residential dwellings other than farmhouses.   For all substantially damaged residential structures, other than farmhouses, located in a designated floodway, the department, at the request of the local government, is authorized to assess the risk of harm to life and property posed by the specific conditions of the floodway. Based upon scientific analysis of depth, velocity, flood-related erosion and debris load potential, the department may exercise best professional judgment in recommending to the local permitting authority repair, replacement or relocation of a substantially damaged structure. The property owner shall be responsible for submitting to local government any information necessary to complete the assessment required by this section when such information is not otherwise available.

(1) Recommendation to repair or replace a substantially damaged residential structure located in the regulatory floodway shall be based on the flood characteristics at the site. In areas of the floodway that are subject to shallow and low velocity flooding, low flood-related erosion potential, and adequate flood warning time to ensure evacuation, the department may recommend the replacement or repair of the damaged structure. Any substantially damaged residential structure located in the regulatory floodway in a high risk zone based on the flood characteristics will not be recommended to be repaired or replaced. Flood warning times must be twelve hours or greater, except if the local government demonstrates that it has a flood warning system and/or emergency plan in operation. For purposes of this paragraph flood characteristics must include:

(a) Flood depths can not exceed more than three feet; flood velocities cannot exceed more than three feet per second.

(b) No evidence of flood-related erosion. Flood erosion will be determined by location of the project site in relationship to channel migration boundaries adopted by the local government. Absent channel migration boundaries, flood erosion will be determined by evidence of existing overflow channels and bank erosion.

At the request of local government, the department will prepare a report of findings and recommendations for local government concurrence on repair or replacement of substantially damaged residential structures located in the regulatory floodway.

Without a recommendation from the department for the repair or replacement of a substantially damaged residential structure located in the regulatory floodway, no repair or replacement is allowed per WAC 173-158-070(1).

(2) Before the repair, replacement, or reconstruction is started, all requirements of the National Flood Insurance Program, the state requirements adopted pursuant to RCW 86.16.031(8), and all applicable local regulations must be satisfied. In addition the following conditions must be met:

(a) There is no potential safe building location for the replacement residential structure on the same property outside the regulatory floodway.

(b) A replacement residential structure is a residential structure built as a substitute for a previously existing residential structure of equivalent use and size.

(c) Repairs or reconstruction or replacement of a residential structure shall not increase the total square footage of floodway encroachment.

(d) The elevation of the lowest floor of the substantially damaged or replacement residential structure is a minimum of one foot higher than the base flood elevation.

(e) New and replacement water supply systems are designed to eliminate or minimize infiltration of flood water into the system.

(f) New and replacement sanitary sewerage systems are designed and located to eliminate or minimize infiltration of flood water into the system and discharge from the system into the flood waters.

(g) All other utilities and connections to public utilities are designed, constructed, and located to eliminate or minimize flood damage.

[]

Washington State Code Reviser's Office